Last week, a federal jury in New York acquitted Ahmed Ghailani of 279 terrorism-related charges. The jury also convicted him of one charge of conspiracy to destroy US Government buildings and property, for which he will serve a sentence of no less than 20 years. That verdict has reignited the debate over whether terrorism suspects should be tried in military commissions or in federal district courts.
Since September 11, the vast majority of terrorism trials have been held in federal court and the government has enjoyed an overwhelming conviction rate. But at least one aspect of Ghailani's trial was unique and raises issues not present in the other trials to date: he is the first suspect to be tried in federal court after being taken into custody in Pakistan and transported to a number of CIA "Black Sites" before ending up at Guantanamo. While in the custody and control of the CIA and the US military, Ghailani was subjected to harsh interrogation techniques. Because his confessions came as a result of these interrogations, the government did not offer those statements into evidence at his trial. In addition, the judge in the case excluded the testimony of a key witness because the government only came to know about that witness as a result of the coercive interrogations of Ghailani.
Those critics who oppose trying terrorism suspects in federal court will seek to bolster their argument by pointing to the suppression of this evidence as reason for Ghailani's acquittal on all but one charge. The core of this argument is that we cannot try terrorism cases in federal court because we cannot afford the risk of acquittal, even when the government's case is built upon evidence obtained through legally questionable methods. All of this is in support of the contention that these cases are inherently different than typical criminal cases because we are at war with these terrorists and we should be using a war-fighting paradigm, including military commissions, to combat this threat. But, as the government's overwhelming conviction rate in other post-September 11 terrorism trials demonstrates, there is nothing about these cases that makes them inherently unsuitable for trial in federal court.
In fact, the government has already tried many of Ghailani's co-conspirators in federal court and they are now all serving life sentences in maximum-security prisons. What made Ghailani's case particularly challenging was not the crimes with which the government charged him, but how the government chose to treat Ghailani after he was apprehended in Pakistan. Because the CIA and military interrogators subjected him to years of mistreatment, the government tainted its own evidence. If we had not used questionable interrogation techniques on Ghailani, his confessions would not have been suppressed and a key witness would have been permitted to testify in his trial. Accordingly, critics of federal court trials are reduced to arguing that we need to try Ghailani and others like him in military commissions because, due to our own mistreatment of these suspects, it has become more difficult to obtain convictions in federal court.
At the end of the day, we need to ask ourselves what it is the United States stands for. If we simply want trials to confirm what we already believe to be true - to guarantee convictions - then we are headed down a road unfamiliar to the way justice traditionally has been administered in the United States. Here, the purpose of a trial has always been to put the government to its proof and to demonstrate beyond reasonable doubt that a particular defendant deserves our worst punishments. American leaders after World War II knew this and the trials in Nuremberg proved that, in the midst of the worst atrocities, justice could prevail. Pre-ordained judgments are not justice, as both our enemies and our allies in the war on terror know.
So it is important to note that, in the Ghailani trial, justice was done. The jury found the defendant guilty of conspiracy and he will serve a long sentence of at least a generation in prison and possibly life. In no sense could the trial or verdict be considered a failure. To the contrary, it demonstrates that, even without the results of questionable interrogation techniques on terrorism suspects, the government can make and prove its case. We can only wonder how much easier proving the case would have been had those interrogation techniques not be used.
Lawrence Friedman and Victor Hansen are Professors of Law at New England Law Boston.
Suggested citation: Lawrence Friedman, Victor Hansen, The Ghailani Trial: Justice Served, JURIST - Forum, Nov. 24, 2010, http://jurist.org/forum/2010/11/the-ghailani-trial-justice-served.php.